The
matter before the court is Defendant CRST Van Expedited,
Inc.'s (“CRST”) “Motion to Amend Fee
Award and Judgment” (“Motion”) (docket no.
465), which CRST filed on October 2, 2017. On September 22,
2017, the court entered an Order (docket no. 462), ruling on
the Eighth Circuit Court of Appeals's Mandate (docket no.
452) to consider the questions posed by the Supreme Court in
CRST Van Expedited, Inc. v. E.E.O.C., U.S., 136
S.Ct. 1642 (2016), and making individualized findings as to
whether the claims dismissed on summary judgment were
frivolous, unreasonable and/or groundless pursuant to
Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412
(1978). On that same date, Judgment (docket no. 464) entered.
In the September 22, 2017 Order, the court found, among other
things, that the claims dismissed for Plaintiff Equal
Employment Opportunity Commission's (“EEOC”)
failure to comply with statutory presuit requirements were
amenable to an award of attorneys' fees. See
September 22, 2017 Order at 13-22. The court ultimately
awarded $1, 860, 127.36 in attorneys' fees and costs,
which includes $128, 414.50 in fees “representing the
claims dismissed for failure to comply with presuit
requirements.” Id. at 81. On October 9, 2017,
the EEOC filed a Resistance (docket no. 467) to the Motion.
On October 13, 2017, CRST filed a Reply (docket no. 468).
CRST requests oral argument on the Motion, but the court
finds that oral argument is unnecessary. The matter is fully
submitted and ready for decision.

II.
ANALYSIS

In the
Motion, CRST requests that the court amend the September 22,
2017 Order and the September 22, 2017 Judgment pursuant to
Federal Rules of Civil Procedure 59(e), 60(a) and 60(b)(1).
See Motion at 1. In particular, CRST argues that the
court inadvertently miscalculated the fees awarded for the
claims that were dismissed because the EEOC failed to comply
with presuit requirements. See Brief in Support of
the Motion (docket no. 465-1) at 2. CRST contends that the
court's new calculation of fees “omits from the
award the bulk of the fees previously awarded to CRST for the
EEOC's claims dismissed for failing to satisfy Title
VII's [presuit] requirements.” Id. CRST
states that the $128, 414.50 that the court previously
awarded for the claims dismissed for failure to comply with
presuit requirements “does not represent the total
amount of fees” that the court previously awarded for
these claims. Id. at 6. Instead, this amount
“represents only those fees resulting from work devoted
solely to briefing and arguing the [presuit] requirements
issue at the end of the pre-appeal phase of the case.”
Id. The amount upon which the court relied in the
September 22, 2017 Order did not account for all other legal
work pertaining to those claims, such as written discovery
and depositions. Id. CRST argues that an additional
award of $1, 726, 330.32 is proper with respect to the claims
dismissed for the EEOC's failure to comply with its
presuit requirements-seventy-two claims ultimately dismissed
on those grounds multiplied by CRST's calculated
per-claimant average of $23, 976.81. See Id. at 3-4;
see also September 22, 2017 Order at 80-81.

The
EEOC appears to argue that CRST cannot recover fees incurred
after the time that CRST should have moved for dismissal of
the claims for which it seeks additional fees. See
Resistance at 1-2 (“Thus, if CRST had believed that the
EEOC's investigation and conciliation efforts were
insufficient . . . CRST-instead of asking the [c]ourt to
impose a deadline on the EEOC's identification of
additional claims-would have filed, in the summer or fall of
2008, a motion to dismiss based on [the] EEOC's alleged
failure to satisfy [presuit] requirements. Instead, CRST
waited until May 2009, . . . long after most of the fees it
now seeks had been incurred.”). The EEOC also argues
that CRST's work on the presuit requirements issue began
after it conducted written discovery, depositions and
briefing on CRST's various motions for summary judgment.
Id. at 2. Thus, the EEOC contends that “CRST
expended the [$1.7 million] it now seeks on discovery and
motion practice unrelated to the basis for dismissing
the” claims that were dismissed for failure to comply
with presuit requirements. Id. Finally, the EEOC
argues that the court's award of fees in the September
22, 2017 Order was within the range of “rough
justice” permitted under the Supreme Court's Title
VII fees jurisprudence and no adjustment is warranted.
Id. at 5.

In
response, CRST argues that “none of CRST's fees and
costs incurred in defending against the [presuit]
[r]equirements [d]ismissed [c]laims would have been incurred
but for the EEOC's filing and litigation of these
[c]laims despite having failed to comply with Title VII's
statutory requirements.” Reply at 2 (emphasis omitted).
CRST argues that the average per-claimant fees that it
requests were incurred “solely on each individual
claim.” Id. at 3 (emphasis omitted). It
contends that the “fees and expenses incurred on issues
relating to multiple claims, such as pattern-or-practice and
[presuit] requirements, were calculated separately from the
individual claim average.” Id. CRST further
argues that it should not be barred from seeking additional
fees for the discovery work performed with respect to the
claims dismissed for failure to comply with presuit
requirements because the court only permitted the EEOC to
proceed on such claims after it represented that there was a
good faith basis for the claims. Id. at 4. The EEOC
made this representation despite the fact that it was aware
that it did not investigate or conciliate any of the
individual claims at issue. Id. Finally, CRST argues
that the $128, 414.50 awarded in the September 22, 2017 Order
cannot be “rough justice” when it only represents
approximately 7% of the fees CRST “incurred to litigate
claims that should never have been filed.” Id.
at 5. CRST states that this limited fee award “would
not reasonably compensate CRST for fees and expenses it would
not have incurred but for the EEOC's unreasonable
litigation conduct.” Id.

Federal
Rule of Civil Procedure 59(e) permits a party to file a
motion to alter or amend a judgment no later than
twenty-eight days after the entry of the judgment.
See Fed. R. Civ. P. 59(e). This rule “was
adopted to clarify a district court's power to correct
its own mistakes in the time period immediately following
entry of judgment.” Chapman v. Hiland Partners GP
Holdings, LLC, 862 F.3d 1103, 1110-11 (8th Cir. 2017)
(quoting Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th
Cir. 1998)); see also Webb v. Exxon Mobil Corp., 856
F.3d 1150, 1159 (8th Cir. 2017) (“Motions under Rule
59(e) ‘serve the limited function of correcting
“manifest errors of law or fact or to present newly
discovered evidence.”'” (quoting United
States v. Metro. St. Louis Sewer Dist., 440 F.3d 930,
933 (8th Cir. 2006))). “Federal courts generally use
Rule 59(e) ‘to support reconsideration of matters
properly encompassed in a decision on the merits.'”
Chapman, 862 F.3d at 1111 (quoting White v. N.H.
Dep't of Emp't Sec., 455 U.S. 445, 451 (1982)).
The court maintains broad discretion in determining whether
alteration or amendment of judgments under Rule 59(e) is
appropriate. See Id. at 1110.

Federal
Rule of Civil Procedure 60(a) provides that “[t]he
court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a
judgment, order, or other part of the record.”
Fed.R.Civ.P. 60(a). Rule 60(a) is used to provide relief from
judgment based on clerical mistakes in the record
“[w]here the parties' intentions are clearly
defined and ‘all the court need do is employ the
judicial eraser to obliterate a mechanical or mathematical
mistake.'” Alpern v. UtiliCorp United,Inc., 84 F.3d 1525, 1539 (8th Cir. 1996) (quoting
Matter of W. Tex. Mkt'g Corp., 12 F.3d 497,
504-05 (5th Cir. 1994)). Federal Rule of Civil Procedure
60(b)(1) permits the court, “[o]n motion and just
terms, ” to relieve a party from a final judgment,
order or proceeding due to “mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
Relief pursuant to this rule is unavailable “for
judicial error other than for judicial inadvertence.”
Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 461
(8th Cir. 2000) (quoting Fox v. Brewer, 620 F.2d
177, 180 (8th Cir. 1980)).

Courts
have found that, if “the district court in the course
of a reasonably complex accounting simply failed through
inadvertence to understand one aspect of the [party's]
case, it seems only sensible that the alleged mistake should
be taken up directly with the court, ” rather than
raised on appeal. Welch & Corr Constr. Corp. v.
Wheeler, 470 F.2d 140, 141 (1st Cir. 1972); see also
Reyher v. Champion Int'l Corp., 975 F.2d 483, 488
(8th Cir. 1992) (noting that supplementing a judgment to
include “prejudgment interest is subject to Rule 59(e)
because it ‘is an element of plaintiff's complete
compensation' and it ‘does not raise issues wholly
collateral to the judgment in the main cause of
action'” (quoting Osterneck v. Ernst &
Whinney, 489 U.S. 169, 175 (1989))). The court finds
that analysis of the Motion under Rule 59(e) is proper. The
Motion was timely filed and addresses matters encompassed
within the court's most recent award of fees.
Specifically, the Motion addresses whether the court
inadvertently omitted fees for work performed on the claims
dismissed for failure to comply with presuit requirements,
which the court found were amenable to a fee award.

Initially,
the court notes that, if such fees are proper, they were
omitted due to inadvertence. The procedural posture of the
case preceding the September 22, 2017 Order was such that the
briefing upon which the court relied to render its fee award
could not have properly encompassed the fees at issue. In
particular, at the time that the parties briefed the
individualized claims, they labored under the assumption that
fees for the claims dismissed for failure to comply with
presuit requirements were unavailable. See May 19,
2015 Order (docket no. 410) at 2 (ordering briefing on remand
from the Eighth Circuit Court of Appeals and noting that
“that the Eighth Circuit determined that CRST cannot
recover attorneys' fees and costs based on the EEOC's
failure to satisfy its presuit obligations”).
Therefore, before the court issued the September 22, 2017
Order, there was no reason for CRST to have informed the
court as to its request for the fees now at issue, nor was
there any reason for the EEOC to object to the same. In any
event, their exclusion from the September 22, 2017
Order's calculation was the fault of no one, and the
court finds it appropriate to consider them in the interest
of completeness.

The
EEOC's argument that CRST could have avoided the work
corresponding to the fees sought by moving for their
dismissal at an earlier time is unpersuasive. In Fox v.
Vice, the Supreme Court refined the standard used for
awarding attorneys' fees to prevailing defendants where a
plaintiff asserts both frivolous and nonfrivolous claims. 563
U.S. 826 (2011). The Fox standard permits a court to
award a prevailing defendant costs incurred for work that it
would not have performed but for the frivolous claims.
Id. at 829. Notably, the Fox Court does not
suggest any further inquiry into the claim-for example, it
does not require courts to examine the exact scope of the
work necessary to dispose of a frivolous claim or dictate
that a court may only award fees to that extent. To the
contrary, Fox concerns itself broadly with
“costs that the defendant would not have incurred but
for the frivolous claim.” Id. Fox
speaks in terms of “claims” and does not
distinguish between work that was necessary to prove that a
claim was frivolous, unreasonable and/or groundless, and work
that was performed on other aspects of defending the claim. A
standard requiring such an additional inquiry was never
articulated in Fox, nor in Christiansburg.
The EEOC has cited no authority suggesting that this standard
should apply, and the court is aware of none. Instead, the
existing Supreme Court jurisprudence suggests that all fees
associated with and which would not have been incurred but
for a plaintiff bringing a frivolous claim are recoverable to
a prevailing defendant.[1] Whether the full extent of the fees
requested is recoverable is better determined under the
reasonableness portion of a fee calculation.

Here,
the court finds that additional fees associated with the
claims dismissed for the EEOC's failure to comply with
its statutory presuit requirements are appropriate. As the
court found in the September 22, 2017 Order, CRST's
general method of determining a per-claimant average portion
of the fees incurred is appropriate and reasonable in light
of the court's familiarity with the case and the
peculiarities of the manner in which this case was litigated
and appealed. See September 22, 2017 Order at 78.
The court further finds that this method complies with
Fox, because each of the individual claims that the
court dismissed for failure to comply with presuit
requirements are frivolous, unreasonable and/or groundless
under Christiansburg. See Id. at 22-23.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;However,
the court agrees with the EEOC that the substance of the fees
that CRST now seeks appear to be beyond the scope of what the
court can award. CRST points out that its calculated
per-claimant average of $23, 976.81 represents a per-claimant
share of the court&#39;s original fee award, less fees
associated with the briefing and argument of the claims
dismissed for failure to comply with presuit requirements,
less fees associated with the pattern-or-practice claim.
See Brief in Support of the Motion at 4. This is the
same figure upon which the court relied in awarding
per-claimant fees with respect to the individualized findings
contained in the September 22, 2017 Order. See
September 22, 2017 Order at 80-81. What CRST fails to
recognize is that the court's original fee award, less
the fees associated with the failure to comply with presuit
requirements and the pattern-or-practice claim, still
apparently contains work performed on briefing and argument
of CRST's various motions for summary judgment. In
neither its “Brief Supporting Its Request for an Award
of Attorneys' Fees Out-of-Pocket Expenses, and Taxable
Costs” (“CRST Remand Brief”) (docket no.
416), nor in the Brief in Support of the Motion, does CRST
intimate that the per-claimant ...

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